But what can security agencies, like the Transportation Security Administration (TSA) or Customs and Border Protection (CBP), actually do with your phone? Can they take it away? Can they even look through it? Knowing what’s allowed and what’s not is key to being informed. Here are six things you need to know.

1. TSA Won’t Take Your Phone, But CBP Might

First, let’s talk about who might be looking at your phone. TSA protects transportation systems: they scan your luggage, ensure your ticket is valid, and provide airport security. The only reason they might be interested in your phone is if it looks suspicious and they’re not sure it should be allowed on a plane.

(Just to be clear, that’s not a legal opinion. Can TSA take your phone? Yes. But it’s very unlikely.)

CBP, on the other hand, is a different story. This organization exists to “safeguard America’s borders thereby protecting the public from dangerous people and materials while enhancing the Nation’s global economic competitiveness by enabling legitimate trade and travel.”

In short, they want to keep terrorists out, as well as enforce agricultural laws and similar statutes that limit what people can bring into the country. And they’re going to be much more interested in your phone.

2. CBP Is Interested in Your Intentions

So why is CBP interested in your phone? Deputy Executive Assistant Commissioner, Office of Field Operations, John Wagner, puts it simply: “Electronic device searches are integral in some cases to determining an individual’s intentions upon entering the United States.”

The CBP says these types of searches have been crucial in supporting investigations of national security, child pornography, human trafficking, visa fraud, export violations, and intellectual property rights violations. In short, they work.

What sorts of things will the CBP look at if they decide to search your phone? Contacts, messages, social media accountsThe 6 Best Social Media Apps for TravelersThe 6 Best Social Media Apps for TravelersThere's no better way to explore somewhere than to do so with advice from people who have traveled there before you – and social media apps are the best way to connect with these insiders!Read More, photos, and apps are fair game. If a border agent suspects you might be coming into the country with ill intentions, they’re going to use any means they can to determine whether that suspicion is well-founded.

Exactly what contacts, messages, or apps might warrant further investigation isn’t clear. It’s up to the border agent to decide whether you should be detained or denied entry.

3. Phone Searches and Seizures Are Rare

CBP recently released some statistics on the number of electronic devices they search. In fiscal year 2015, 8,503 international travelers had their devices searched. In 2016, it was just over 19,000. That sounds like a lot, but it’s less than one-hundredth of a percent in both cases.

In the first six months of fiscal year 2017, they searched just under 15,000, so searches are getting more common. That’s still less than 0.01 percent, though. Not accounting for factors like travel destination, ethnicity, behavior, and anything else that might affect your chances of being searched, you’re not very likely to have your phone seized.

Of course, there are many stories of people seemingly targeted for their ethnicity or home country for unreasonable searches.

In some states, agents need to have a reasonable suspicion of criminal wrongdoing to run a full forensic search on your phone, but not to quickly flip through your photos, messages, and so forth.

CBP also reserves the right to detain your phone for up to five days, though that limit can be extended. There are reports of some devices being seized for weeks or months.

The legal rights of CBP are often contested and sometimes ill-defined. In general, though, they can look through your phone, hold it for closer inspection, and send it off for a full forensic examination. That examination could come up with things you’ve deleted or didn’t know were on your phone.

5. Unlocking Your Phone Isn’t Required, But Helpful

The extent of your rights when subject to search and seizure is hotly debated. There are Constitutional protections in place that prohibit unreasonable searches, but they’re often loosely interpreted at the border. Whether — and to what extent — they apply to non-citizens is also sometimes debated.

Non-citizens won’t find the same protection. You can be denied entry into the country if you don’t unlock your phone. And it certainly can happen. And you don’t need to hail from a country considered hostile. A Canadian reporter was denied entry in November 2016 when he refused to unlock his phone to protect confidential sources.

Image Credit: inifnity21 via Shutterstock

This brings up an interesting point: can you refuse to unlock your device on the grounds that you have confidential information that’s legally privileged? Journalists, doctors, and lawyers all might consider this question. Unfortunately, there’s no clear answer. CBP says it will tread carefully in these situations. Other organizations aren’t so happy with how that’s been put into practice.

You can always tell the agent that you have confidential, privileged information. But it might not get you anywhere.

The other legal option you have is to call a lawyer. It’s important to note that, while groups like the ACLU often recommend this, it’s going to immediately make the border agent suspicious. You’re likely to spend a lot longer at the border, and it’s going to be an unpleasant fight. You also have to pay for that lawyer, as the government isn’t required to provide one like they are in a courtroom situation.

6. Protecting Yourself Is Good, But May Raise Suspicions

There are a few things you can do6 Ways to Defend Your Privacy at the Border6 Ways to Defend Your Privacy at the BorderIs the Trump administration is considering demanding lists of websites, passwords, and social media accounts from people entering the U.S.? And if so, how can you avoid this scrutiny?Read More if you’re nervous about CBP searching your phone when you enter the country. As we discussed in the previous section, however, it’s important to note that taking these actions might raise the suspicions of border agents. You might be doing these things on principle, but think of it from their point of view — it definitely looks like you have something to hide.

That being said, if you want to keep their eyes off of your data, it’s a good idea to not have much data on your phone when you travel. Switching your SIM over to a burner phoneSick of the NSA Tracking You? Burn Them with a Burner PhoneSick of the NSA Tracking You? Burn Them with a Burner PhoneSick of the NSA tracking you using your phone's positioning coordinates? Prepaid phones known colloquially as "burners" can provide you with partial privacy.Read More is easy, and keeps all of your private information elsewhere. You can also backup and wipe your phone before you travel. Fully encrypting your device will make copies less useful, and keeping sensitive documents and photos in the cloud instead of on your device makes them harder to get to.

Again, remember that these actions might raise the suspicions of border agents. And that could cause you a lot of inconvenience. That doesn’t mean it isn’t worth doing — just remember that you’re making a trade-off.

A Simple Answer and a Complicated One

Can TSA take your phone? Not unless they think it endangers the transportation system. CBP, on the other hand, is a different story. They have extensive rights that are, frankly, important for protecting the United States and its citizens. That doesn’t mean they always use them in ethical ways — but it does mean they’re unlikely to lose those rights anytime soon.

So it’s best to prepare yourself. Keep as little data as possible on your phone, encrypt itHow To Encrypt Data on Your SmartphoneHow To Encrypt Data on Your SmartphoneWith the Prism-Verizon scandal, what allegedly has been happening is that the United States of America's National Security Agency (NSA) has been data mining. That is, they have been going through the call records of...Read More, and consider traveling with a burner. Expect to raise border agents’ suspicions, but know that you can’t be denied entry into the country if you’re a citizen. Whether the inconvenience — and potential denial of entry, for non-citizens — is worth it depends largely on your views, tolerance for discomfort, and the importance of your entry.

It’s a tough one.

Have you had your phone searched by Customs and Border Protection? Do you protect your data before you travel? Share your thoughts and experiences in the comments below!

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Katie

September 7, 2019 at 12:29 pm

I recently flew from Ft Myers Fl to Houston. I have TSA preapproval. But TSA took my phone and the agent disappeared with it for a few minutes. When I asked why I was told "new regulations". I complained to Homeland Security. Got not much of an explanation. Have also written to Civil Liberties Union. Had no answer yet. Everyone says TSA doesn't look at your phone but they did. One glance tells it's an Apple not a dangerous phone. Am very upset over this incident.

My advice to you? If you want to catch your flight comply with the search with a smile on your face and a courteous attitude and don't have child pornography on your computer. The CBP will not reimburse you for missed flights if you are detained because you do not allow access to your electronics. Do not say you want your attorney. Right or wrong your hands are tied. The CBP can look at your computer and they can keep it (though they will pay for mailing your computer or cell phone back to you). Border agents inspected the files of roughly one in 10,000 cellphones and other electronic devices in the past year so your odds are low that it will happen to you.

I had my phone searched while entering Canada a few months ago. I answered the woman's questions truthfully, then she asked for my phone and password. I immediately began to panic, which she took as reasonable suspicion (although I'm not sure why I threw red flags beforehand). Her and another woman then ordered me around and did a search, one was yelling for several minutes, causing a giant scene. She kept yelling that she knew I had something to hide based on my reaction, and kept accusing me of child pornography and drug trafficking: to EVERYONE. Finally... I confessed to her my crimes (by coming out of the closet)... To EVERYONE. Gruelling half an hour later she returned my devices after search and I entered Canada. It doesn't matter though, I will always hold a special place of anger for this woman.

After perusing some Supreme Court rulings on data privacy (out of curiosity), a strong argument can be made that CBP *does not* have any Constitutional right to see anything you have on your phone or confiscate anything without an explicit Court order. Reasonable suspicion is fine, but "reasonable" in legal terms means that pretty much ANYONE would consider the action reasonable. Not what THEY consider reasonable. So ask yourself, would it be REASONABLE for a border agent to just randomly demand people open their personal lives to them (their devices) simply as a condition of passing into the country? The answer is, of course, no. That's totally unreasonable without cause.

So, here's what I'D recommend you do if confronted with this possible situation at the border (because it is what I have done). Make it clear to them that the device is encrypted and that the key is random. Also make clear to them that the key is not saved anywhere or written down, it's memorized - side note, make sure you create strong keys...that are random...and that you MEMORIZE them. Explain to them firmly, but politely, that you refuse to surrender your key to decrypt and/or unlock the device unless they provide you with written justification about why they need to do so and an order by a Court with jurisdiction. Additionally, if they think this is suspicious, also make it clear to them you don't care what they think about what what they think they have authority to do...or should be allowed to do. Stick to facts. And the FACT is (if you are a citizen), that the Fourth Amendment is absolute. They can get what they want from you *IF* they do so legally and properly. If they choose not to, get ready for a standoff. One way or the other, you will be released and they will be left with a useless brick should they opt to retain your device (assuming it's encrypted and your accounts are locked down).

CBP agents are convinced that they have unlimited power and for all intents and purposes, they do. They have no compunctions about showing off that power. They are the ultimate bullies. No matter how egregious their breaking of the rules is, they justify it by hiding behind "National Security'.

If your phone is locked, that is suspicious. If your phone is unlocked, they consider that suspicious. If you claim that you have confidential data on your phone, that is very suspicious. If you do not have any data on your phone, that is suspicious. If you do not have a phone, that is very suspicious. The fact that you left the US and now are coming back is very suspicious.

If you are going to take your whole life story with you out of the country and want to come back in...Why would you take it in the first place? Have a travel phone with no life story on it? It takes an article like this to alert people? The people who already own the phone need to find out exactly what happens up return to the United States? It amazes me that people who use cell phones are experts at it, but finding out about procedures on return they know nothing? lol

Cell phones are hurting society as a whole, recent reports suggest (Google it?). Cell phones were sold as emergency 911 use. They made a big pitch about it. That's gone now. Kids under a Junior in High School should not have access to phones, computers or anything tech related. They need to learn "by hand". Another story (Google it?) talks about the "high" of tech devices which is like alcohol and drugs. I believe it. How many kids worry about whether their post is trending? How many suicides? One is too many.

You have to take everything into context and right now tech sites only talk about how great technology but they never warn about addiction of those devices, and the results that could happen which are bad. They don't see because they make tons of money on it. lol